Opinion
CIVIL ACTION NO. 02-0971, SECTION "K"(1)
August 7, 2003
ORDER AND REASONS
The Court, after considering the complaint, the record, the applicable law, the Report and Recommendation of the United States Magistrate Judge and plaintiffs objections filed on December 18, 2002, hereby approves the Report and Recommendation of the United States Magistrate Judge and adopts it as its opinion in this matter.
Pursuant to 28 U.S.C. § 636(b)(1), the Court has made a de novo review of those portions of the report and recommendations to which objections are made. There is no issue with respect to the timeliness of the appeal; however, petitioner contends that he is entitled to an evidentiary hearing contrary to the magistrate judge's findings.
Objection to Standard of Review
Petitioner contends that the magistrate judge erred with respect to his entitlement to an evidentiary hearing based on Michael Williams v. John Taylor Relying on that case, he argues that "because the state courts have refused Sanders the opportunity to fully develop his claims, the requirements of 28 U.S.C. § 2254(e)(2) are satisfied, hence Petitioner is not precluded from obtaining an evidentiary hearing on the merits of his claims in the federal forum." First, it is evident that petitioner has been given the opportunity to develop his claims at various evidentiary hearings conducted by the state courts. Furthermore, petitioner's characterization of the Taylor case is overly simplistic. Taylor focuses on the interpretation of 28 U.S.C. § 2254(e)(2) which provides:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that —
(A) the claim relies on —
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.
The Supreme Court simply applied this standard in Taylor and made it clear that both prongs must be met to trigger the right to an evidentiary hearing.
Petitioner has not delineated any specific reasons to support his conclusory claim that under Taylor and this statute he is entitled to an evidentiary hearing on any of his claims. Furthermore, having reviewed the record, the Court finds that he cannot demonstrate that "but-for the constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense." At the heartland of this case is the fact that petitioner, after having been read his Miranda rights, admitted to the authorities that he killed the two victims in this matter when he was apprehended at his house in Mexico, prior to being taken into custody, (Habeas Peititon, Exhibit 21, p. 256-57), and thus prior to any possible "torture" that is alleged to have happened in the Mexican authorities' custody. As such, the Court rejects this objection.
Double Jeopardy Claim
The Court has reviewed petitioner's objection concerning double jeopardy and finds it baseless. The magistrate judge's analysis utilizingState v. Murray, 799 So.2d 453 (La. 2001) and her finding that petitioner is not entitled to federal habeas corpus relief because the state court's "ultimate conclusion" was correct citing DiLosa v. Cain, 279 F.3d 259, 262 (5th Cir. 2002) are sound. This objection is rejected.
Lack of Jurisdiction
The magistrate judge's reliance on United States v. Alvarez-Machain, 112 S.Ct. 2188 (1992) is well-founded. The treaty between Mexico and the United States does not prohibit a transfer of custody by means other than under the treaty. As the Supreme Court found in that case, the Extradition Treaty between United States and Mexico does not prohibit abductions outside of its terms, and general principles of international law provide no basis for interpreting the Treaty to include an implied term prohibiting international abductions. Thus, in Alvarez-Machain, the Supreme Court found that the district court had jurisdiction to try a Mexican national who had been forcibly kidnapped and brought to the United States to stand trial for violations of the criminal laws of United States.
Applying this standard in the case before this Court, the circumstances are even less flagrant. There was no "kidnapping" rather local authorities turned Sanders over to Louisiana authorities. Thus, petitioner's argument is again without merit, because he has not demonstrated that the Louisiana Supreme Court's decision regarding this claim was contrary to, or involved an unreasonable application of clearly established Federal law as determined by the Supreme Court of the United States.
Suppression of Favorable Evidence in violation of Brady v. Maryland
Petitioner alleges that his rights under Brady v. Maryland, 373 U.S. 83 (1963) were violated with respect to the following documents: (1) FBI Arrest Report, (2)Terrebonne Parish Supplemental Report, (3) State Department Records, (4) Coroner's Report, (5) Statements of Dannette Bevill and Jude Trosclair, The Court has reviewed each of these documents in light of the legal standard applicable to a Brady claim. As it is a mixed question of law and fact, this Court must "defer to the state court unless its decision was `contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'" Dilosa v. Cain, 279 F.3d 259, 262 n. 2 (5th cir. 2002); 28 U.S.C. § 2254(d)(1). None of petitioner's arguments meet this standard and for the reasons set forth in the magistrate judge's Report and Recommendation, theses objections are overruled.
Petitioner opines with respect to his Brady claims that the State withheld favorable evidence which would have proven that petitioner's confessions were obtained in violation of his constitutional rights. With respect to this allegation, in essence, petitioner cites to information in (1) an FBI Arrest Report, (2) the Tenrebonne Parish Supplemental Report, (3) State Department Records. He also contends that evidence found in the (4) Coroner's Report would demonstrate that the victims engaged in sex at the time of the killing which is exculpatory because it would have supported a verdict of manslaughter rather because of the "heat of blood." Finally, he contends that two statements made by (5) Danette Bevill and (6) Jude Trosclair would exculpate him.
The gravamen of the petitioner's contention with respect to the FBI Arrest Report is that the discrepancy between officers' description of his tatoo — that being an eagle as opposed to a "bird of paradise" demonstrates that the witnesses lied at trial. The logic is faulty and without support. Furthermore, the supplemental report makes it clear that the primary confession was obtained without coercion, as was also determined in a state court evidentiary hearing. The Louisiana Supreme Court's resolution of the State Department Records is likewise not an unreasonable application of Brady; there is simply no proof that the State of Louisiana had possession of the documents. With respect to the Coroner's Report, the Court also agrees that there is no such "proof of sex contained in the report and furthermore, defense counsel was provided open file discovery. As such, the objection is without merit. Finally, as to the statement of Danette Bevill that some man threatened to kill her, the petitioner and petitioner's brother and as such, petitioner was denied evidence to present to the jury of his innocence, petitioner never presented this defense. Furthermore, again, there was open file discovery in this case. Likewise, with respect to the Jude Trosclair's statement, Trosclair opined therein that Sanders had admitted to the slayings. The objections is without merit.
Introduction of Perjured Testimony
Again, petitioner presents a laundry list of objections with respect to the magistrate judge's report and recommendation concerning alleged perjured testimony. The Court concurs with the magistrate judge's finding that petitioner has not demonstrated that the state court's decision regarding these claims was "contrary to or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
Jury Instruction Claim
Petitioner objects to the analysis adopted by the magistrate judge concerning the use of "sequential jury instructions." Petitioner contends that the jury charges were constructed in such a way that the jury would have been prevented from considering the mitigating factors of sudden passion or heat of blood such that a finding of guilty of manslaughter was unconstitutionally precluded. A review of the Louisiana Supreme Court analysis in light of the standard under AEDPA, requires the Court to find no merit in this objection as well. The Louisiana Supreme Court noted in a footnote:
In fact, though defendant's complaints are based on the "sequential" nature of the instructions, which he argues allows the jury to consider a lesser included offense only after deciding that no enough evidence exists to convict on the greater offense, the substantive definition of manslaughter, as differentiated from the definitions of first and second degree murder, precedes in the instructions most of the language defendant complains restricts the jury's consideration. Thus a juror forming an opinion as the instructions were read would be especially unlikely to interpret the instructions in the way defendant (and the Falconer court) suggest.State v. Sanders, 648 So.2d 1272, 1280, n. 2 (la. 1994).
Petitioner cites to Sandstrom v. Montana, 99 S.Ct. 2450 (1979) for the proposition that evidentiary presumptions in a jury charge that have the effect of relieving the state of its burden of persuasion beyond a reasonable doubt of every essential element of the crime violates the Fourteenth Amendment's Due Process clause. In that case, the trial court instructed with respect to whether the defendant had committed "deliberate homicide" which was defined as purposefully or knowingly causing a victim's death that "[t]he law presumes that a person intends the ordinary consequences of his voluntary acts," over petitioner's objection that such instruction had the effect of shifting the burden of proof on the issue of purpose or knowledge. The jury found petitioner guilty, and the Montana Supreme Court affirmed, holding that although shifting the burden of proof to the defendant by means of a presumption is prohibited, allocation of "some burden of proof" to a defendant is permissible. Sandstrom v. Montana, 99 S.Ct. 2450, 2453-2554. Furthermore, as to petitioner's reliance on Falconer v. Lane, 905 F.2d 1129 (7th Cir. 1990), with respect to the sequential nature of the charges, this case has not been cited or relied upon by the Fifth Circuit, and the Louisiana Supreme Court specifically rejected this argument.
The jury charge at issue herein simply does not entail the kind of evidentiary burden shifting to which Sandstrom addresses itself.Sandstrom, the only United States Supreme Court case relied upon by petitioner, did not address the sequential argument and as such, this objection is without merit as petitioner has not demonstrated that the Louisiana Supreme Court's decision regarding the jury instructions "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
Incorrect Definition of Reasonable Doubt
Petitioner contends that because his counsel incorrectly defined "reasonable doubt" to the jury during voir dire, he is entitled to habeas relief. This assertion again has no merit. The trial court cautioned the jury during its instructions that the attorneys' statements including during voir dire is not evidence and is not to be considered.
Ineffective Assistance of Counsel
Having reviewed the pleadings in this regard, the Court concurs with the magistrate judge's description as "rambling" with respect to the claims petitioner makes under this rubric. Furthermore, the magistrate judge's Report and Recommendation address each claim thoroughly, precisely and correctly. The objections raised neither have merit nor do they address the Report and Recommendation's analysis. They are simply a regurgitation of the same arguments presented in the petition.
With respect to the reasonable doubt instruction, the Report and Recommendation addresses the issue correctly, and petitioner does not even cite a case to contradict the magistrate judge's ruling. With respect to the double jeopardy claim, again, petitioner reurges the same arguments previously rejected. The failure to impeach witnesses concerning the identifying tattoo, petitioner's birth records and complaints of torture are again dealt with extensively in the Report and Recommendation and indeed provide no basis for an ineffective assistance claim. As to the failure to use the Coroner's Report to prove that the decedents were engaged in sexual activity, again petitioner mischaracterizes the information in the document. The report simply does not prove that the victims were engaged in sexual activity thus petitioner's counsel was not deficient in failing to use it. As to the motel records which petitioner contends would demonstrate that he and the female decedent engaged in sexual activities after their separation and thus were on good terms at the time of the murder, petitioner's counsel opined that petitioner never spoke of this fact. As stated by the magistrate judge, "counsel cannot be considered ineffective for failing to investigate potential evidence when he has no notice or reason to suspect that it exists." Soria v. Johnson, 207 F.3d 232, 251 (5th Cir. 2000).
As to the alleged failure to subpoena the various witnesses, petitioner's objections again are in globo. Nonetheless, reviewing the painstaking analysis as to each of the alleged witnesses, the Court finds no error in that analysis and will adopt these conclusions as its own. Finally as to the allegation that petitioner's counsel was deficient because he prevented Sanders from taking the stand, it is clear from the record, in particular the testimony of the petitioner's counsel, that this allegation simply is not true. Again, under AEDPA's deferential standard, the petitioner's objections are without merit.
Discrimination in the Selection of the Grand Jury Foreperson
Petitioner contends that the magistrate judge erred in denying him relief on this constitutional charge — that is discrimination in the selection of the grand jury foreperson. The State argued that the claim is procedurally barred in this federal habeas corpus proceeding. And indeed, the magistrate judge's application of Finley v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001); Hughes v. Johnson, 191 F.3d 607, 614 (5th Cir. 1999); and Williams v. Cain, 125 F.3d 269, 276 (5th Cir. 1997) is incisive and correct. Unless petitioner can point to objective factors that demonstrate cause for the procedural default, petitioner has no right to habeas relief. The magistrate judge then found that the two reasons presented by petitioner were meritless in extensive detail with which this Court finds no error.
Furthermore, in the recently decided case of Pickney v. Cain, 2003 WL 2157367 (5th Cir. July 21, 2003), which dealt specifically with a claim of racial discrimination in the selection of a grand jury foreperson, the Fifth Circuit reiterated that a habeas petitioner may overcome the state procedural bar only by demonstrating: (1) cause for the procedural default and actual prejudice as a result of the alleged violation of federal law, or (2) failure to consider his claims will result in a fundamental miscarriage of justice. Id. at *2. Cause can be shown by demonstrating ineffective assistance of counsel. However, in addition to cause, a defendant must show actual prejudice. The Fifth Circuit then stated unequivocally that a court need not even address the question of cause where it is confident that there is no prejudice. Id. Considering the foregoing analysis and the petitioner's confession, it is clear that a duly reconstituted grand jury would have indicted this defendant again. Thus, the objection is again meritless. Likewise, petitioner has failed to demonstrate that a failure to consider his claims will result in a fundamental miscarriage of justice. Accordingly,
IT IS ORDERED that petitioner's application for habeas corpus relief pursuant to Title 28, United States Code, Section 2254, is hereby DENIED WITH PREJUDICE.